395 
ity”. It would also allow for continued consideration of all relevant environmental 
concerns as “factors” to be taken into account in the overall assessment of “‘accept- 
ability”’. 
A second means of amendment would be to leave the Sec. 102 criteria unchanged 
insofar as they relate to material other than dredged material and to amend Sec. 
103(b) to delete the requirement that the Corps apply the Sec. 102 criteria in the 
evaluation of dredged material. Instead, the Corps would independently consider the 
statutory factors listed in Sec. 102(a) (A)-(I), along with all other public interest fac- 
tors relevant to the determination. This would establish a separate procedure for 
the evaluation of dredged material. This change could be accomplished by striking 
out the provision of Sec. 103(b) that provides: 
“In making the determination required by subsection (a), the Secretary shall 
apply those criteria, established pursuant to section 102(a) of this title, relating to 
the effects of the dumping * * *” and by substituting in lieu thereof the following 
provision (new language italicized): 
“In making the determination required by subsection (a), the Secretary shall con- 
sider the factors specified in section 102(a) (A)-(D) of this title, along with all other 
factors affecting the public interest * * *” 
This change would also require conforming amendments to Sec. 103(c) and 103(d) 
to delete the reference to “compliance (and non-compliance) with the criteria” and 
to refer instead to the ‘““Administrator’s objection to the determination of the Secre- 
tary under subsection (a)’ and to refer to a “waiver of objection” rather than to a 
“waiver of compliance.” 
The two changes described above would also properly require a further amend- 
ment to Sec. 103(d) to require appropriate consideration of all public interest factors 
by the Administrator in making any determination to deny a request for a ‘‘waiver’’ 
submitted by the Corps. It would require amendment of Sec. 103(d) to include the 
following italicized language: 
“(d) * * * Within thirty days of the receipt of the waiver request, unless the Ad- 
ministrator finds that the dumping of the material will result in an unacceptably 
adverse impact on municipal water supplies, shellfish beds, wildlife, fisheries (in- 
cluding spawning and breeding areas), or recreational areas, and that such effect is 
dominant over other factors affecting the public interest, he shall grant the waiver.” 
In connection with any listing of factors to be included in the Sec. 102 “criteria,” 
the AAPA also urges the Subcommittee to retain the current consideration (in Sec. 
102(a)(A)) of “the need for the proposed dumping,” and to require consideration of (i) 
the costs, and economic, commercial, and governmental impacts and conditions, as- 
sociated with the proposed dumping, (ii) mitigative measures (e.g., “special care” 
measures) which may be utilized in the dumping, and (iii) the existence of “feasible 
and prudent alternatives” to the dumping (as proposed to be defined by the AAPA 
in Part B(2) of this Statement). 
(2 The “Prudent and Feasible Alternative” Criteria of Sec. 102(aX4).—Sec. 
102(a)(4), pp. 8-9, of the Discussion Draft establishes ‘criteria’ to be applied in de- 
_ termining whether a “feasible and prudent alternative’ to ocean dumping exists in 
connection with the permit decisions to be made under Sec. 102(a\(B) and Sec. 
103(a)(2). The criteria provide that such an alternative exists where the probable ad- 
verse impact of alternative locations or methods of disposal ‘“* * * is less than or 
equal to the impact of the dumping” (presumably without any consideration of com- 
parative ‘“‘costs’’), or where an alternative location or method of disposal can be uti- 
lized “* * * at reasonable cost and energy expenditures” (presumably without 
regard to comparative impacts). The fact that ocean dumping may cost less, or be 
less difficult to implement, is not a reason, in itself, for determining that alternative 
means are neither prudent nor feasible. 
The AAPA vigorously objects to this biased treatment of ocean dumping insofar 
as it applies to dredged material. Such a bias is unwarranted and is squarely at odds 
with the developing scientific evidence as to the effects of ocean disposal, and the 
emerging scientific consensus that ocean dumping should be considered on an equal 
basis with other means of disposal. See Part A, supra. 
There is no justification for requiring use of alternative means of disposal solely 
on the basis of comparative impacts without regard to cost, or solely on the basis of 
“reasonable cost and energy expenditures’ without regard to comparative impacts. 
A “rule of reason’ is required which will take into account, and properly balance, 
both comparative impacts and costs. This is the approach taken in the Ocean Water 
Act (40 CFR § 125.121(d), 45 Fed. Reg. 65953 and 659546). 
In the case of the Discussion Draft, this result could be achieved by changing Sec. 
102(a)(4)(A) and (B) to provide that a “feasible and prudent alternative’ exists only 
when (i) the ocean dumping of dredged material will have significant adverse im- 
